Plaintiff's counsel then filed a replication that repeated the ex post facto
allegation in the petition. Pursuant to ORS 34.680(1), defendant moved to dismiss the
writ on the ground that plaintiff had failed to state or establish a ground for habeas
corpusrelief. The motion asserted that the parole board did not apply ORS 144.125 to
postpone plaintiff's parole release date but instead relied on applicable administrative
rules. The motion was set for oral argument. At argument, plaintiff was not present and
there is nothing in the record to indicate that he was furnished the opportunity to express
his position regarding defendant's motion by telephone or in writing. Defendant's
counsel told the court, in part,

"In my Motion to Dismiss, I just address what [plaintiff] raises in his
replication. He claims that the Board not issuing a release date for him and
setting it to October 27th, 2002, he claims it was illegal."

Plaintiff's counsel's entire response was,

"Judge, [plaintiff], when I spoke to him, his complaint that he related to me
and I put in the replication was he was claiming this really is a technical
with a six-month maximum sanction. He apparently received an 86-month
sanction.

"He also is making some claims of ex post facto and I also put those
in the replication at his request."

"[t]he trial court erred in summarily denying the motion to substitute
counsel without adequately inquiring as to the Plaintiff's reasons for the
motion. The court erred in failing to inquire into the nature of Plaintiff's
conflict with counsel. * * *

"A plaintiff must be permitted to state the reasons why he believes
that appointed counsel should be discharged and new counsel appointed."

Defendant responds,

"In criminal cases, in order to exercise its discretion properly, the
trial court must inquire into the nature and evaluate the merits of the
criminal defendant's complaints. It if is assumed arguendo that the same
standard applies in a habeas corpus proceeding[], the trial court made such
an inquiry in this case by asking plaintiff's counsel the nature of the reason
why plaintiff wanted counsel to withdraw from his representation.
Defendant's [sic] counsel was either unable, or unwilling for reasons of
attorney-client privilege, to describe the nature of the complaint. The trial
court did not reversibly err in failing to inquire, because it did inquire into
the reasons for the request." (Citation omitted.)

In State v. Bronson, 122 Or App 493, 497, 858 P2d 467 (1993), a case
involving an appeal of a conviction for unlawful sale of wildlife, we said:

"A defendant must be permitted to state the reasons why he believes that
appointed counsel should be discharged and new counsel appointed. The
court must inquire into the nature and evaluate the merits of defendant's
complaints." (Citations omitted.)

In Bronson, the record did "not indicate the specific concerns or conflicts [the] defendant
had with his court-appointed attorney or if the court evaluated the merits of [the]
defendant's complaint." 122 Or App at 498. We held that the trial court's failure to make
the proper inquiries on the record was reversible error.

Nonetheless, ORS 34.355 provides that "[i]f counsel is appointed by a
court to represent, in an initial proceeding by habeas corpus or on appeal as provided in
ORS 34.710, a person who is imprisoned or otherwise restrained of liberty by virtue of a
charge or conviction of crime and who is unable to afford counsel," then compensation
should be determined and allowed by ORS 135.055. The trial court in this case
undertook to exercise its discretionary and implicit authority under ORS 34.355 by
appointing counsel for plaintiff and then exercised it a second time under the statute by
declining to substitute counsel, even though plaintiff claimed that counsel had a conflict
of interest. It is the latter ruling that plaintiff claims is error, and we review that ruling
for an abuse of discretion. An abuse of discretion occurs when a trial court exercises its
authority to "an end not justified by and clearly against the evidence and reason." Lutz v.
State of Oregon, 130 Or App 278, 285, 881 P2d 171 (1994).

By not making an inquiry of plaintiff about the nature of the conflict with
his attorney so as to inform itself of the merits of the claim, the trial court in this case
deprived plaintiff of a "just" determination of his habeas claim and effectively required
him to proceed with appointed counsel against his will. The trial court record is silent as
to whether plaintiff had the opportunity, after the trial court ruled, to protest personally
the trial court's denial of his request to substitute counsel or to appear pro se. Had the
trial court inquired of plaintiff, plaintiff could have decided to proceed without counsel,
or, under ORS 9.340, could have revoked counsel's authority. Instead, the trial court
ultimately reached the merits of plaintiff's habeas claim on a pleading prepared by
counsel with whom plaintiff claimed he had a conflict. We conclude that the trial court
erred when it exercised its discretion under ORS 34.355 without giving plaintiff an
opportunity to be heard at a time when the authority of his counsel to represent him was
in dispute.

Finally, the question of prejudice arises because of the trial court's failure to
inquire into the nature of the conflict of interest between plaintiff and his appointed
counsel. It could be that on the merits defendant's motion is well-taken. Nonetheless, it
is impossible for us to reach that determination on the record before us. We are
presented with plaintiff's unexplained assertion that counsel be substituted and
competing claims about the parole board's actions. Because plaintiff was not given an
opportunity to be heard, we cannot determine whether he has had the opportunity to
present his side of the issues. It would be a different matter if he had such an opportunity
and had failed to offer an explanation of his claims. When a party is represented by
counsel in court, his "day in court" is dependent on the words spoken and the actions
taken by counsel on his behalf. Until the claim of conflict of interest is resolved, the
presentation of plaintiff's claims and their resolution is tainted. On remand, the trial
court should determine if a conflict exists between plaintiff and his counsel and proceed
accordingly.

Reversed and remanded.

DEITS, C. J., dissenting.

In this habeas corpus proceeding, plaintiff argues that the trial court erred
in denying his motion for substitute court-appointed counsel, although plaintiff presented
the court with no basis for his request. While I agree with the majority that plaintiff had
no constitutional right to court-appointed counsel or substituted court-appointed counsel
and that the trial court's decision on this matter should be reviewed for abuse of
discretion, I disagree with the majority's conclusion that the trial court abused its
discretion in denying plaintiff's motion for substituted counsel under the circumstances. I
respectfully dissent.

The majority relies, in part, on ORS 9.340 for its conclusion that a party
has a right to be heard about substitution of counsel. ___ Or App at ___ (slip op at 7-8.)
That statute provides:

"If it is alleged by a party for whom an attorney appears that the
attorney does so without authority, and the allegation is verified by the
affidavit of the party, the court may, if it finds the allegation true, at any
stage of the proceedings relieve the party for whom the attorney has
assumed to appear from the consequences of the attorney's acts."
(Emphasis added.)

The majority has used this statute as a springboard for the conclusion that, even if parties
do not submit affidavits or communicate in any manner to the court about the bases for
their motions, the court nonetheless has an affirmative duty to seek the litigants out and
ask them why they made the motions they did. ORS 9.340 provides no support for the
majority's conclusion.

Likewise, ORS 34.355 provides no support for the majority's conclusion.
That statute merely authorizes payments to attorneys who have been appointed by the
court to represent plaintiffs in habeas corpus cases. The most that can be said about ORS
34.335 is that it implicitly permits a court to appoint substitute counsel for a habeas
corpus plaintiff. It says nothing about the procedures that govern substitution of
attorneys. Given the absence of any specific statutory guidance regarding substitution of
attorneys in habeas cases, it follows that normal practices of civil procedure should
govern procedural questions. Cf. Villarreal v. Thompson, 142 Or App 29, 31, 920 P2d
1108 (1996) ("Unless the habeas corpus statutes provide otherwise, the Oregon Rules of
Civil Procedure govern habeas corpus actions.").

The majority cites no statute or rule of procedure that indicates that a trial
court has an affirmative duty to glean information from a party who files a motion but
fails to cite any authority or provide any relevant information in support of that motion.
That is exactly what plaintiff did here--he had his lawyer file a motion but communicated
no basis for his motion. The majority errs in concluding that the trial court somehow
deprived plaintiff of "an opportunity to be heard[.]" ___ Or App at ___ (slip op at 9).
Plaintiff never sought more of an opportunity to be heard than what he received. He
filed no affidavit in support of his motion and did not request an opportunity to be heard
in person at the telephonic hearing on his motion. Nowhere else in the civil procedure
context has this court carved out an exception to the normal rules governing civil actions
and required a trial court affirmatively to seek out more information than has been
provided by the parties before deciding a pretrial motion. The majority should not set
such a precedent in this case, requiring trial courts to do litigants' work for them.

In sum, in a civil proceeding, a party making a pretrial motion generally
bears the burden of presenting arguments or submitting information to persuade the trial
court that the motion should be granted. In the absence of any arguments or information
in support of a motion, a trial court does not abuse its discretion in denying the motion.
Under the circumstances presented here, plaintiff is not entitled to the relief the majority
gives.

I respectfully dissent.

1. At the hearing, the following colloquy between the trial court and plaintiff's
counsel occurred:

"THE COURT: Okay. Let's take up [plaintiff's case]. [Counsel's] here.
[Counsel], what do you want to say on this one?

"[COUNSEL]: Judge, back in January, he sent a letter asking me to file a
motion to remove myself. He feels that there's a conflict of interest, with me
representing him, in attaining his freedom.

"THE COURT: What's the conflict? Does he tell you or is it something
you can reveal to me?

"The Sixth Amendment does not provide merely that a defense shall be
made for the accused; it grants to the accused personally the right to make his
defense. * * * The right to defend is given directly to the accused; for it is he
who suffers the consequences if the defense fails.

"The counsel provision supplements this design. It speaks of the
'assistance' of counsel, and an assistant, however expert, is still an assistant. The
language and spirit of the Sixth Amendment contemplate that counsel, like the
other defense tools guaranteed by the Amendment, shall be an aid to a willing
defendant - not an organ of the State interposed between an unwilling defendant
and his right to defend himself personally. To thrust counsel upon the accused,
against his considered wish, thus violates the logic of the Amendment. In such a
case, counsel is not an assistant, but a master; and the right to make a defense is
stripped of the personal character upon which the Amendment insists."
(Footnotes omitted.)

3. In Pennsylvania v. Finley, 481 US 551, 107 S Ct 1990, 95 L Ed 2d 539 (1987),
Finley sought post-conviction relief under a Pennsylvania statute. Finley's appointed counsel
reviewed the trial record, consulted with her and, after concluding that there were no arguable
bases for relief, requested permission to withdraw. The trial court reviewed the record
independently and agreed with counsel's appraisal. Finley acquired new appointed counsel and
appealed on the ground that the procedures utilized by her first appointed counsel had not
complied with the requirements of Anders v. California, 386 US 738, 87 S Ct 1396, 18 L Ed 2d
493 (1967), regarding the presentation of appeals on behalf of indigent defendants. Anders
requires a certain procedure when appointed counsel finds a case to be wholly frivalous that
permits the defendant appear pro se. On appeal, the state court held that the Anders procedure
had to be followed. On certiorari, the Court reversed the state court, holding that the right to
appointed counsel does not extend to post conviction relief or habaes types of relief.

"If it is alleged by a party for whom an attorney appears that the attorney
does so without authority, and the allegation is verified by the affidavit of the
party, the court may, if it finds the allegation true, at any stage of the proceedings
relieve the party for whom the attorney has assumed to appear from the
consequences of the attorney's acts."

5. Although no constitutional right is involved here, denying the opportunity to be
heard under these circumstances in a civil case presents the same kind of problem that occurs in a
criminal case where the Sixth Amendment is implicated. After all, counsel in a civil case
performs the same purpose as in a criminal prosecution--to assist the litigant in making the
litigant's personal case before the court. The dissent argues that our decision creates an exception
to the rules of civil procedure that requires trial courts affirmatively to seek out more information
from litigants than has been provided by them for purposes of deciding pretrial motions.
However, the circumstances of this case are unique. The trial court had before it parties who
were not present and who were represented by counsel. At the hearing on the pending motion,
the court was informed by plaintiff's counsel that plaintiff claimed that a conflict of interest
existed between him and counsel. That information put the court on inquiry as to whether it had
a represented party appearing before it. If, in fact, counsel had no authority to represent plaintiff
for purposes of the motion, then the court should not have permitted the hearing to proceed with
counsel representing plaintiff.